Cavanagh v State of New South Wales [2008] NSWCA 350

New South Wales Court of Appeal

CITATION: Cavanagh v State of New South Wales [2008] NSWCA 350

HEARING DATE(S): 3 December 2008

JUDGMENT DATE: 17 December 2008

JUDGMENT OF: Giles JA at 1; Ipp JA at 41; Macfarlan JA at 42

DECISION: (1) Grant leave to appeal and direct that the notice of appeal be filed within seven days. (2) Appeal allowed. (3) Set aside the order dismissing the notice of motion filed on 8 December 2004 and in lieu thereof order that the limitation period for the appellant's cause of action pleaded in the amended statement of claim filed on 21 September 2007 be extended up to and including that date. (4) Set aside any order as to the costs of the notice of motion made by the trial judge and order that the plaintiff pay the defendant's costs of the notice of motion. (5) Order that the respondent pay the appellant's costs of the application for leave to appeal and the appeal.

CATCHWORDS: Negligence - limitations - application to extend limitation period - whether just and reasonable - tests of showing viable cause of action or that evidence will be available to show a cause of action - any test subservient to statutory question - on facts, was just and reasonable.

LEGISLATION CITED: Limitation Act 1969, s 60G(2)

Briggs v James Hardie & Co Pty Ltd (1989) 16 NSWLR 549; Holt v Wynter [2002] NSWCA 143; (2000) 49 NSWLR 128; CASES CITED: New South Wales v Seedsman [2000] NSWCA 119; (2000) 217 ALR 583; Rutter v State of New South Wales [2005] NSWCA 231; Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497; Yu v Speirs [2001] NSWCA 373.

PARTIES: Christopher Edwin Cavanagh - Appellant State of New South Wales - Respondent